The following is offered for information and educational purposes only. It is not legal advice and should not be substituted for legal analysis of a particular situation.
FAQs: South Carolina Probate Administration.
1. What is “probate”? "Probate," more formally “probate administration,” is the process by which the legal affairs of a deceased person are concluded. In simplest form, the court-appointed Personal Representative transfers decedent’s assets decedent's designated beneficiaries. But probate also allows creditors to make claims against the decedent’s estate. Legitimate creditors’ claims are paid before any gifts can be distributed to beneficiaries. Probate administration is the purview of county Probate Courts, which, among many other duties, adjudicate any unresolved disputes between the decedent’s creditors and his or her estate, and disputes among beneficiaries.
2. What is a “personal representative”? The personal representative (or “PR”) is appointed by a Probate Court to administer a decedent’s estate. The PR identifies and gathers decedent’s probate assets, satisfies legitimate creditor’s claims, distributes the remainder to beneficiaries, all in compliance with the Probate Code as administered by the appropriate county Probate Court. Personal representatives were formerly called "executors."
3. What are “probate assets”? Probate assets are generally the assets of a deceased person that are not automatically delivered to some other person. Examples include real estate titled solely in decedent’s name or bank accounts where no death payee or beneficiary was named on the account. Life insurance proceeds that named the estate as beneficiary would also be Probate Assets.
4. What are “non-probate” assets? Conversely, non-probate assets are those that pass to a new owner automatically upon the death of one who had some legal interest in them. Examples include real estate interests where the decedent held title jointly with others who had a right of survivorship, retirement accounts and life insurance policies where a surviving beneficiary was named, and property held by the trustee of a trust.
5. How does someone become a personal representative? Someone wanting to become the personal representative of an estate must request appointment from the Probate Court having jurisdiction over the matter. Requesting appointment is done by completing and submitting certain documentation to the Court.
6. If someone is nominated in the Will to be a personal representative, are they obligated to serve? No, there is no legal obligation to ask the probate court to be named as personal representative, regardless of nomination by decedent in his or her Will. Personal Representatives are not appointed involuntarily. If someone applies to be named as personal representative, though, he or she affirms in the application that he or she will faithfully discharge the PR’s duties. Upon appointment by the Probate Court, the PR has a legal obligation to fulfill the PR's duties.